George v. Cigna Ins. Co.
| Decision Date | 23 April 1997 |
| Docket Number | No. 95-2711,95-2711 |
| Citation | 691 So.2d 1209 |
| Parties | 22 Fla. L. Weekly D1019 Daniel C. GEORGE, Appellant, v. CIGNA INSURANCE COMPANY, Wicker, Smith, Tutan, O'Hara McCoy, Graham & Lane, P.A., G. Victor Tutan, individually, and James M. Redmond, individually, Appellees. |
| Court | Florida District Court of Appeals |
Greenfield & DuVal and Harvie S. DuVal, North Miami, for appellant.
Arnall, Golden & Gregory and Karen B. Bragman, Atlanta, GA; Stephens, Lynn, Klein & McNicholas and Asa B. Groves, III, Miami; Clarke, Silverglate, Williams & Montgomery and Mercer K. Clarke, Miami, for appellees.
Before JORGENSON, COPE and GERSTEN, JJ.
ON MOTION FOR REHEARING
On consideration of appellant's motion for rehearing, we withdraw the court's previous opinion and substitute the following opinion:
Daniel C. George appeals from an adverse final summary judgment. We affirm.
Appellant Daniel George was formerly counsel to Ennia General Insurance Company. In the first underlying lawsuit, Ennia sued George for legal malpractice, alleging that George had failed to timely file 134 subrogation claims and that the statute of limitations had expired. Ennia also alleged malpractice in connection with his defense of an Ennia insured in one lawsuit.
George's professional malpractice insurer, INAPRO, 1 undertook his defense, and hired the appellee law firm of Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A. (Wicker Smith), to conduct the defense. During the ensuing litigation, summary judgment was entered in George's favor on all but three of the 135 malpractice claims.
Ennia proposed to settle the remaining three claims in exchange for payment of $40,000 by INAPRO. The professional liability insurance policy stated, "The Company shall not make any settlement or compromise any claim without the written consent of the Insured." George vetoed Ennia's settlement proposal, and a subsequent one.
Ennia finally proposed that it would voluntarily dismiss its case with prejudice if INAPRO would not seek to recover its taxable costs. 2 This was acceptable to INAPRO, since INAPRO in its ordinary practice would not have sought such costs anyway. INAPRO again consulted George. According to the affidavit of appellee James M. Redmond of Wicker Smith:
I telephoned Daniel George and after an extensive conversation, got him to agree that if INAPRO chose not to seek reimbursement for its litigation expenses, that was their business as it was INAPRO's money and not his. He did not agree to settlement and made it quite clear that he did not want Ennia General Insurance Company getting paid any money as a result of its legal malpractice lawsuit against him and his former partner and partnership.
I told Mr. Gramling [counsel for Ennia] in no uncertain terms that Mr. George would not approve or agree to settle the case but that he had no authority to keep INAPRO from foregoing its right to follow up on its subrogation rights for costs and fees and/or it was their money, not his, and he could not prevent INAPRO from waiving their claim if they wished to do so.
According to George's affidavit:
Redmond apparently continued negotiations and advised me that he wished to waive any claim for litigation costs in return for a dismissal with prejudice of the remaining claims.
I told him that I would not agree to any settlement and that under no circumstances was any waiver of costs to be considered as a settlement which would preclude my maintaining a malicious prosecution suit against Ennia.
That notwithstanding my demand that Wicker Smith not settle the case, and preclude me from maintaining a malicious prosecution action against Ennia, they proceeded to settle the case over my objections, without seeking a provision in the dismissal that would be of such a nature as to indicate that I was not guilty of the remaining claims against me.
On March 28, 1990, Redmond wrote to Ennia's counsel "to accept the settlement terms...." Ennia was to file a voluntary dismissal with prejudice. INAPRO would issue a letter of intent stating that there would be no attempt to collect prevailing party costs.
On April 2, 1990, Redmond wrote to Ennia's counsel, stating:
This is to supplement my recent letter wherein we discussed the terms under which we have agreed to dispose of this case. Specifically, in order to avoid any confusion, the agreement which we are currently implementing is not a "settlement" wherein the defendants are acknowledging in any way that there was any exposure to plaintiff on its claims as articulated in its Amended Complaint. Rather, INAPRO, Mr. George's and Mr. McQuade's professional liability insurance carrier, has agreed to forego any claims it may have for reimbursement of the expenses it has incurred in defending Messrs. George & McQuade in this lawsuit. To put a fine point on it[,] Ennia General Insurance Company is voluntarily dismissing, with prejudice, this lawsuit as its own independent decision and in no way involves either defendants George & McQuade.
This letter is intending to clarify the use of the word "settlement" in my letter of March 28, 1990, which was used inadvertently and in no way should be construed as indicating that this case was "settled".
If you have any questions, please call me at your convenience. I am looking forward to receiving your dismissal with prejudice ending this lawsuit.
Ennia's counsel replied, "I am not certain that I understand it [Redmond's letter] but do believe that we have agreed to dispose of this case...." Ennia then voluntarily dismissed the lawsuit with prejudice.
Next, George filed suit against Ennia and its attorneys for malicious prosecution. Ennia moved for summary judgment on the theory that the first lawsuit had been settled, and that there had thus been no bona fide termination of the first lawsuit in favor of George. A bona fide termination in favor of George was an essential element...
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4-2 Estoppel
...Finizio, P.A., 226 So. 3d 979, 982 (Fla. 4th Dist. Ct. App. 2017). The court found the defendant's reliance on George v. Cigna Ins. Co., 691 So. 2d 1209 (Fla. 3d Dist. Ct. App.), review denied, 699 So. 2d 1373 (Fla. 1997), to be misplaced because: "The malpractice allegation in this case is......